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If Justice Susan Himel’s decision stands, prostitutes will be able to communicate freely with customers on the street, conduct business in their homes or brothels and hire bodyguards and accountants without exposing them to the risk of criminal sanctions.

The Superior Court judge suspended her ruling from taking effect for 30 days to give the government time to consider how to address potential consequences, including the emergence of unlicensed brothels.

Justice Minister Rob Nicholson said the federal government is “very concerned” and is seriously considering an appeal of the 131-page ruling.

Alan Young, a lawyer at the forefront of the landmark legal challenge, said it is too early to say whether Tuesday’s decision could open the door to Canada going “the way of Germany with five-storey brothels.”

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But to his client, Terri-Jean Bedford, a dominatrix who was convicted in 1998 of keeping a common bawdy house, it was “emancipation day.”

Bedford and prostitutes Valerie Scott and Amy Lebovitch took on the legal might of the federal and provincial governments, their battle waged on a shoestring legal aid budget and the volunteer services of expert witnesses and lawyers.

Scott said the decision means sex workers no longer have to “worry about being raped, robbed or murdered.”

Himel found Criminal Code prohibitions against keeping a common bawdy house, living on the avails of prostitution and communicating for the purposes of the trade violated the women’s Charter rights to freedom of expression and security of the person.

Rather than making prostitution itself illegal, the federal government has attempted to curtail the trade by criminalizing related activities.

Bedford, Scott and Lebovitch argued those prohibitions prevented them from conducting their business in the safety of their homes or brothels and forced them into hasty street conversations with potential customers, with no time to weed out those who might be dangerous.

Federal lawyers maintained that prostitution is inherently risky whether it is practised indoors or outdoors and that decriminalizing it would be out of sync with the moral values of most Canadians.

But Himel said the Criminal Code prohibitions were overly broad.

While the prohibition against living on the avails of prostitution is meant to target pimps and stop the exploitation of women, Himel said it prevents prostitutes from legally hiring bodyguards, drivers and other security personnel.

“The law presents them with a perverse choice,” she said. “The applicants can safeguard their security, but only at the expense of another’s liberty.”

Many prostitutes already work out of their homes and complaints about nuisances arising from indoor prostitution are rare, Himel added.

Yet the Criminal Code prohibitions against keeping a common bawdy house deprive them of the safety benefits of working in familiar surroundings with security systems, she said.

While a somewhat similar legal challenge to the Criminal Code’s prostitution provisions was dismissed by the Supreme Court of Canada in 1990, Young said the stage was set for reconsidering the issues when sex workers began disappearing from Vancouver’s downtown east side and pig farmer Robert Pickton was charged with their murders.

“In 2002, when they began digging up bodies on the pig farm,” he said, “it became obvious to every Canadian that it’s very dangerous for sex workers to be on the streets.”

Young suggested the decision could open the door to a new election issue, as Toronto and other municipalities consider whether to follow the leads of New Zealand, Germany, the Netherlands and parts of Australia and Nevada and introduce municipally based licensing of prostitution.

Scott said sex workers want to work with municipalities and be responsible business owners and neighbours.

Citizens shouldn’t worry about a brothel opening up next door, she added.

“There is no reason to be afraid. Lightening bolts won’t hit the sidewalk,” said Scott. “There won’t be frogs all over.”

With files from Richard J. Brennan

Deciphering the decision

Q: Does the decision apply across Canada?

A: The ruling, which was made by an Ontario Superior Court judge, is binding only in Ontario.

Q: When does it take effect?

A: After 30 days, unless the federal government can persuade a court to suspend the ruling for a longer period.

Q: What does the ruling allow sex workers to do that they previously couldn’t?

A: They can work indoors without fear of being charged with operating a common bawdy house. They can also engage in conversations with customers on the street, as long as they are not impeding traffic or harassing pedestrians. And they can hire accountants, drivers and bodyguards without exposing them to the possibility of being charged with living on the avails of prostitution.

Q: Does this mean a brothel can open up in my neighbourhood?

A: It’s possible, although unlikely. Other laws will probably come into play here. There are other ways for prostitution to be regulated outside of the Criminal Code, including municipal zoning. A residential area could be zoned to prohibit any kind of commercial enterprise, including sex work, for instance.

Q: Will I see more men and women working the streets?

A: Maybe, although prostitutes are likely to stick to their usual areas. Sex workers go where their clients are. They aren’t likely to work a corner in the suburbs, for example, because people seeking street-level prostitutes tend to go to the city.

Q: Will prostitutes be safer now?

A: Most sex workers believe so, but some experts fear that if demand for prostitutes surges, there could be an increase in human trafficking.

Q: Is this really what the Canadian public wants?

A: An Angus Reid poll conducted when this case first went to trial in 2009 suggested that half of Canadians would decriminalize prostitution, so long as it was between adults and consensual. Some say the court is just catching up to public sentiment. Others say Canadians might be loathe to accept reforms that come down in a Toronto courtroom.

By Nicki Thomas. Compiled from interviews with Brenda Cossman, law professor at the University of Toronto and expert on sexuality and the law; Christine Bruckert, criminology professor at the University of Ottawa and former sex worker; and Janine Benedet, associate law professor at the University of British Columbia and member of the Abolition Coalition, a group seeking the abolition of prostitution.

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